Duty Issues

Linked Transactions

Traditionally it was necessary to incorporate a certificate in a deed, in order  to certify that the transaction was below a certain value in order to obtain the benefit of lower stamp duty rates.  Where a transaction together with other transactions together form the series, the rate of duty that applies, depends of the sum of the value of the series or transactions.  Most of the requirements for certificates have been removed, in the context of e-stamping. The matter is dealt with, in the context of the e-stamping return.

A series of transactions may arise where a number of assets are sold  by a seller to a buyer on the same occasion.  Questions may arise as to whether there is a single deal or bargain or whether there are a number of distinct transactions.  If there is some interdependence in the transactions, such that one may not complete without the other, there is likely to be a series, so that the rate applicable to their sum, would be charged.

Where collectively their value exceed the relevant threshold, the higher rate will apply as if there was a single transaction..

Where a VAT is chargeable on a transaction, stamp duty does not apply on it.

Gifts / Undervalues

A transfer at undervalue or a gift is stampable at market value, as if it were a conveyance on sale. Formerly such transfers attracted half the normal rate, where the person benefited was within certain categories of relationship to the transferor. This no longer applies, in the context of much reduced rates of stamp duty.

Formerly, a so-called “voluntary” conveyance (gift), a sale at undervalue or a transfers to  connected persons required to be adjudicated.  This involved submission of documentation to the Revenue including valuations.  Since  July 2012, adjudication is no longer required. The electronic stamping return requires disclosure of such circumstances and may attract Revenue scrutiny or audit.

Gross Value

Stamp duty taxes the  gross value of a transaction.  If a property is transferred, subject to a mortgage or other financial charge, stamp duty applies the gross value rather than the value of the equity.

Residential Rates Reform

Prior to December 2010,  the rates of stamp duty had ranged from zero to nine percent on residential property and from zero to six percent on non-residential property.  There had been significant differences on the basis of charging over the previous 20 years.  Numerous exemptions and complications existed.

The 2010 amendments altered and simplified the application of stamp duty.  This coincided with a severe depression in the property market.  Stamp duty was one of the taxes which performed strongly in the development boom, but collapsed in its aftermath.

The general rates of stamp duty were significantly reduced in December 2010.  In the case of residential property, the rate is one percent for transactions below €1,000,000 in price or value.  The excess is over €1,000,000 is taxed at two percent.  This drastically reduced rates and changed the previous principle whereby once the rate band was crossed, the entire price is  stampable.

Non-Residential Rates

Prior to December 2011  The rates applicable to commercial property was six percent over €80,000.  In this context, commercial property refer to all non-residential property. The non-residential rate was reduced to 2% subsequently increased to 9% before being reduced to 7.5%.

Residential v Non-Residential

Residential property is a building or part of a building, which at the date of conveyance or lease, is used or is suitable for use as a dwelling.  It includes a partly constructed or adapted dwelling. It may also include dwellings which have not been adapted for residential use, such as derelict  property.  It includes land which is sold in connection with a construction contract for the construction of a dwelling house or apartment.

It must not be rated for commercial rates. In practice it must be subject to local property tax.

Land up to an acre comprising the curtilage of a dwelling is included.  The non-residential rate applies to the remainder.

Building & Sale

There is legislation which seeks to charge stamp duty on the aggregate of the price payable under for a building agreement and a linked contract for the sale f the land.  Many new house purchases are structured in this way. Where there is a connection or arrangement involving a sale of land and a building contract for the construction of a dwelling house on it, stamp duty is payable on the is aggregate price payable.  There are similar provisions in respect of both freehold and leasehold sales.

The position in respect of related contracts for the development and sale of commercial property differs. It is not subject to the specific anti-avoidance provisions, applicable to residential property. Provided that contracts are not interlinked and the property is not substantially complete, the sale deed is stamped on the price / value of the land plus building works as at the date of the contract / conveyance. Contracts are interlocked where they are they cannot be independently completed.  Formerly, it was necessary to include a certificate in every deed to the effect that the sections did or did not apply.

Historical Reliefs

Prior to December 2010, when rates were significantly higher, there existed a number of reliefs, which applied at different times.  The position is still relevant in the context of unregistered title conveyancing. Requisitions may be raised on stamping issues on older deeds, which make up proof of title. There are also cases where reliefs may be clawed back, due to cessation of compliance.

Formerly the sale (deed) for a new houses below  “grant” size (being the maximum size for which a new house grant was formerly available (125sqm)), was exempt from stamp duty. Later relief was allowed on the sale of new houses not larger than a designated size by way of duty at 25 percent on 25 percent of the rate otherwise applicable.

Former First Time Buyer Reliefs

In April 1998, as part of a series of measures to dampen the property market, stamp duty was introduced for non-owner occupiers.  First time buyers who had not owned a dwelling house or apartment before, qualified for favourable rates of stamp duty,  for both new and  second hand houses.

It was necessary that the buyer had owned no residential property before. The consideration had to be derived from the individual’s own means. The proceeds of unconditional gifts could be used. However, if a third party had acquired an interest by means of his contribution to the purchase, price, this cause relief to be denied

First time buyers qualified for lower rates. Beneficiaries of certain trusts for incapacitated persons and  persons who divorced and separated and had left the house without retaining an interest, also qualified for first time buyer rates. The relief was available to a divorced person who purchased a new home, within in a certain period before or after divorce. provided was in connection with the divorce.

Former Owner Occupier Reliefs

Owner occupiers qualified for more favourable rates than those which applied to investors.  Owner occupiers are persons who did not derive rental income for the property. Relief was  clawed back if the rent was   derived from  the property within five years.  This did not apply to income under the rent a room Scheme.  This scheme allowed the receipt of €10,000 per annum or less for renting a room.  The income was tax free and did not affect the claw back and owner/occupier status.

Investors received the least favourable treatment.  The applicable rates were higher and  the bans were narrower.

In 2007 a complete exemption was introduced for  first time buyers irrespective of house size.  The relief was available to all owner/occupiers. It applied to first time purchasers of dwelling houses or apartments who occupied the property as their principal private residence for at least two years.

Claw back occurred where the property ceased  be used as an owner occupier property within three years,   save in respect of income under the rent a room scheme. Buyers were obliged to inform Revenue within six months of receipt of rent.

The purchase price must have been provided by the first time buyer.  Relief is given in case of an unconditional gift where the donor retained no interest, expressly or by operation of law